CONTESTING A WILL – CAN A COURT FORCE A PARTY TO A WILL DISPUTE TO ENGAGE IN ALTERNATIVE DISPUTE RESOLUTION?
Until recently, it didn’t appear to be possible for a Court to force both parties in a Will dispute or Will contest claim to engage in so-called “alternative dispute resolution”. So what you might think? Surely a trial would be the best form of resolution anyway and what in any event is “alternative dispute resolution”?
If you are content to let a Judge decide your Will dispute or Will contest claim then fine, but you must be clear about what you are actually doing in reality. By doing this, you are effectively taking control of your case away from your lawyers and from yourself and you are giving it to a man or woman whom you are unlikely to have met before and who frankly, might not like the cut of your jib when you meet at trial. There is no such thing as a 100% fool proof case no matter how good your lawyers profess to be. This is what seems to have happened to one stepsister in a £300,000 battle over whose parent died first – https://www.thetimes.co.uk/article/stepsister-loses-300-000-battle-over-whose-parent-died-first-086xz6m0d
What then is “alternative dispute resolution” in the context of a Will dispute or Will contest claim. Basically it’s a method of resolving a dispute other than by trial. This could include a simple exchange of correspondence, a telephone chat or a meeting; invariably however, it involves something a little more formal in cases of this type where most commonly there is a quite a lot of heat generated and where a direct face to face meeting is more likely to lead to war rather than compromise. A mediation is a common way of resolving Will disputes and Will contest claims because it has to be done in a formal setting whereby each “side” has a private room and might not necessarily meet and a facilitator is engaged by both (called a “mediator”) to carry out a type of shuttle diplomacy. Whilst courts can’t force parties to engage in mediation, in my experience, if a claim moves into actual court proceedings and a mediation hasn’t been attempted or has failed, a court will be prepared to Order an alternative to mediation called “early neutral evaluation” or sometimes a “Financial Dispute Resolution” appointment. This is akin to a mediation but with additional clout, since a Judge is likely to take a much more robust approach to the merits of the claim and defence than a mediator (who is supposed to be neutral!) and lets face it, if a Judge tells you your case is rubbish, you are likely to listen!
The issue of whether the Court could actually force the parties to a Will dispute or Will contest claim to attend such a hearing was recently determined in Lomax v Lomax 2019 EWCA Civ 1467 and by no less an authority than the Court of Appeal (which is one down from the highest court in the land). For reference, you can find the case here:
Their Lordships ruled that the consent of the parties wasn’t required and that the court could in fact Order the parties to engage in Early Neutral Evaluation. The leading Judgment was given by Lord Justice Moylan, an extract from which I quote below:
1. I would also suggest, in response to Mr Entwistle’s submission that ordering an ENE is a strange way of helping parties settle a case, that it requires parties to focus on whether a case might be capable of settlement and requires them to hear a judge’s neutral evaluation. It requires them to hear this because the parties can be, and would typically be, ordered to attend the hearing as permitted by rule 3.1(2)(c), because one of the key purposes of such a hearing is for the parties to hear directly the judge’s evaluation of the case. Also, contrary to another of his submissions, based on my experience of FDRs, the result of requiring parties to have such a hearing can and often will be to achieve a great deal, including saving rather than adding to costs.
32. In conclusion, I see no reason to imply into subparagraph (m) any limitation on the court’s power to order an ENE hearing to the effect that the agreement or consent of the parties is required. Indeed, in my view such an interpretation would be inconsistent with elements of the overriding objective, in particular the saving of expense and allotting to cases an appropriate share of the court’s resources, and would, therefore, be contrary to rule 1.2(b). If my Lord and my Lady agree, I propose that the appeal be allowed, and, having regard to Parker J’s clear view that this case would benefit from an ENE hearing, I would propose that the court directs that one be held as soon as possible.
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